Can a Church Use Taxpayer Dollars to Deny Birth Control to Sex Trafficking Victims? - Wendy Kaminer - the Atlantic

Imagine this: The Department of Heath and Human Services (HHS) contracts with the Church of Scientology to administer a federal program for emotionally disabled adults. The contract authorizes the church to disburse federal funds to direct service providers. In keeping with its religious beliefs, and with the consent of HHS, the church prohibits these providers from offering psychiatric treatment to the disabled adults they serve.

This is, I admit, a fanciful scenario, but only because Scientology is an unpopular, fringe religion on which HHS would not bestow its largess. There’s nothing fanciful about a hypothetical government contract empowering a religious organization to administer a federal welfare program, despite its stated intent to deny recipients essential services for religious reasons. In fact, this isn’t exactly a hypothetical. It’s history.

From 2006 to 2011, HHS contracted with the United States Conference of Catholic Bishops (USCCB) to administer a federal social service program established by the Trafficking Victims Protection Act. The bishops subcontracted with service providers, on the condition that they would not offer sex trafficking victims contraceptives or abortions. HHS consented to this condition and awarded nearly $16 million to the USCCB during a 5 year period, over $5 million of which was retained by the USCCB for services and expenses.

Did this contract violate the First Amendment’s establishment clause prohibiting the government from sponsoring or adopting sectarian religious practices? The ACLU sued the government in 2009 (representing its members as injured taxpayers), and three years later, in March 2012, it won a federal district court ruling declaring the HHS contract with the bishops unconstitutional. The court found that the contract “delegated authority to a religious organization to impose religiously based restrictions on the expenditure of taxpayer funds,” and “implicitly endorsed the religious beliefs of the USCCB and the Catholic Church.”

Naturally, the USCCB appealed (having intervened as a defendant in 2010). So did the Obama Administration, and last week their appeal was argued before the First Circuit Court of Appeals in Boston.